Wednesday, September 12, 2007

Pressure & stress of World's End trial Prosecutor led to disappearance ?

Pressure & stress - we all get it from time to time, but what happens if we are appearing on behalf of the Crown in a sensational trial liable to press attention ....

The Scotsman reports on Alan MacKay's problems, and also runs a report on support from colleagues. We should all be so lucky when running off fron duty that a national newspaper will run stories in our favour ?

LOOKING at the judge's face and listening to his words, prosecutor Alan Mackay must surely have feared the worst - that one of Scotland's biggest murder trials in recent times was about to be derailed.

After investigations spanning nearly 30 years, and with advanced scientific techniques producing a breakthrough, it had seemed Angus Sinclair would finally face justice for the cold-blooded killings of Helen Scott and Christine Eadie.

But during a debate before the judge, Lord Clarke, last Friday over whether there was sufficient evidence against Sinclair, the awful truth must have hit home to Mr Mackay ... Sinclair was going to be acquitted.

He could anticipate what was to come. The World's End trial was being held in the glare of the media spotlight, with every piece of evidence pored over and reported in full: a collapse would be front-page news.

Worse, he knew what the case meant to the families of the two murdered girls who had spent three decades hoping and praying justice would eventually be done. Now there would be no resolution for them.

But perhaps the most difficult thing was that Mr Mackay knew there had been more evidence the police had gathered against Sinclair - evidence that he had chosen not to lead.

It could not have been much comfort to Mr Mackay that the judge wanted the weekend before he announced his ruling. It just meant more time for him to worry. And come Monday, he was in such a state that he went AWOL, and was not there to hear his fear become a reality.

POLICE said yesterday they were now satisfied as to Mr Mackay's wellbeing and no longer treating him as a missing person - news greeted with relief by the whole legal profession.

But lawyers said the incident had raised issues over the pressure put on prosecutors during high-profile court cases.

"We just all wanted to hear Alan was okay," a relieved fellow lawyer said yesterday. "He's not someone with many enemies, and our concern was for his well-being, especially his state of mind. If, and I repeat if, he has made a mistake, then we've all been there, but we've not all had it broadcast to the world."

Regarded as a solid, hard-working prosecutor, Mr Mackay was known to take to heart cases that do not go to plan. Another of his major prosecutions had been that of policeman Dean Stewart on multiple charges of rape and indecent assault on women in Ayrshire. Many of the women were prey to challenges by the defence as to their truthfulness and reliability, so it could have been predicted that the Crown would struggle.

Nonetheless, Mr Mackay was reported to have been very disappointed that only a few of the charges were held to be proved, and Stewart received a five-year term.

The publicity surrounding that trial had been widespread, but nothing on the scale of the World's End case, and it is something which prosecutors such as Mr Mackay will continue to experience.

Frank Mulholland, QC, the Solicitor-General for Scotland, said: "There is a much higher profile to the job than there used to be. You are in the public spotlight, and we have moved from the anonymous prosecutor. It is not in any way wanted by prosecutors; it is just a fact of life.

"There have been threats to prosecutors during high-profile trials of drugs barons, threats to assault them and abduct their children, that sort of thing. It is a brave job to do. We are in the spotlight and any decision you take is subject to scrutiny."

Donald Findlay, QC, one of Scotland's most experienced defence lawyers in the criminal courts, said "everyone was concerned" about Mr Mackay and pointed out that the pressure on Crown counsel - or advocates- depute (AD) as the posts are called - had increased in recent years. "From what I know and what people say, Mr Mackay is someone who takes his job very seriously and very carefully.

"He always struck me as being anxious to try and achieve what he believes is the right result in a fair way, which, of course, is what you would expect from an advocate-depute."

MR FINDLAY went on: "In a major case, it takes a really strong character to handle the pressure. You have such a weight of responsibility. It's very easy for lawyers and non-lawyers to stand on the sidelines and say in the aftermath, 'You should have done this, you should have done that', but you have to feel your way through the case, making calls in the heat of battle.

"The way cases are prosecuted has changed in recent years. From what I hear, they are increasingly expected to keep in the mind the interests of, for example, the family of a deceased.

"Often, families don't really understand the technicalities involved. They will often be disappointed, and that is not easy for prosecutors to deal with."

A QC who has had experience of working as an AD also highlighted the extra pressure on, and felt by, those with the responsibility of securing a conviction and the jailing of the worst of the country's offenders.

"There once was a convention that the advocate-depute would not be filmed and photographed going into court. That has all gone by the wayside now," the QC said. "It was always the defence lawyers who attracted the attention, and the prosecutors were pretty much anonymous and left to get on with their work. Of course, times have changed, and everybody is caught up in this celebrity culture thing, but there is absolutely no doubt that it adds to the pressure.

"And, believe me, ADs are not in it for the money. There are any number of other areas of the law where you can earn much more, and probably with a fraction of the worry."

Mr Mackay's personal nightmare began last Friday after the closing of the Crown case, when the defence counsel, Edgar Prais, QC, rose to say he intended to make a submission that Sinclair had no case to answer on the charges of raping and murdering Helen Scott and Christine Eadie, both 17, in October, 1977.

It's easy in those situations to misinterpret a comment from the judge as showing agreement or disagreement with the argument being presented. Often, it's just the judge's way of testing out the proposition.

However, almost from the off, Lord Clarke appeared to be having a far easier time with what Mr Prais had to say, than with the response from Mr Mackay.

NOBODY disputed that DNA evidence linked Sinclair with a semen stain on Ms Scott's coat, or that fibres on the coat matched the fabric of the upholstery in Sinclair's Toyota Hiace caravanette. Or, indeed, that he could also be linked sexually to Ms Eadie. But, according to Mr Prais, it would be far too great a leap to infer that Sinclair must have been the person who strangled the girls and dumped their bodies miles apart in East Lothian, or that he had been there as an accomplice when it was done by his brother-in-law, Gordon Hamilton.

There was a 12-hour period between the girls' leaving the World's End pub and the first body being discovered, and for all the evidence revealed, Sinclair could have had sex with them in the van without it leaving Edinburgh, Mr Prais said.

Mr Mackay tried to counter by citing the "critical evidence" of a lack of semen staining on the girls' pants, indicating they had not been worn after intercourse. The pants had been used as a gag in the case of Ms Eadie, and an attempt had been made to use them as a gag with Ms Scott. In Mr Mackay's opinion, the evidence "would support the inference that intercourse took place and the pants were thereafter used as a gag". In that way, Sinclair could be said to have been with the girls at the time of the murders.

Lord Clarke pointed out in a telling intervention that his difficulty was with the word "thereafter" because it could cover a short or a long period of time and there was no way of knowing from the evidence which it had been.

MR MACKAY tried to retrieve the situation, but few present were convinced he had achieved it. He must also have winced inside each time Mr Prais suggested, as he did more than once, that if there had been other evidence, such as DNA to link Sinclair with the ligatures, then he doubted he would have been in a position to submit there was no case to answer. Mr Mackay knew there was such evidence, albeit not totally conclusive, and he had chosen not to present it.

The hearing on Friday ended with most of the assembled media deciding that, at the very least, there was a good chance the judge would dismiss the case on Monday morning.

It seems inconceivable the same thought would not have crossed Mr Mackay's mind over what must have been the most anxious of weekends. Certainly, come Monday morning, he was posted missing when it was confirmed that a case which could have made his name would forever be associated with him for all the wrong reasons.

Call for public inquiry to scrutinise 'sides of equation that don't fit' in case's collapse

INDEPENDENT MSP Margo Macdonald has called for a public inquiry into the case. She believes there are several areas which could be explored in an inquiry.

• A huge amount of resources was devoted to gather evidence for the case. Yet, when the case came to court, it was thrown out, with the judge saying there was no case to answer. The two sides of that equation do not fit and that needs to be looked into.

• Questions must be asked about the evidence which the advocate-depute chose to lead with. There have been suggestions this was not the strongest evidence in the case. Other allegations suggest there may have been facts, linked to other cases, which were not presented to the court. This needs to be cleared up too.

• Angus Sinclair is obviously a very dangerous man and he is unlikely ever to get out of Peterhead Prison. However, trust in the judicial process has been eroded. There needs to be a more general look at the Crown Office's approach and what needs to be done to restore public confidence.

• There is also the personal dimension. The families of the girls who were murdered have been left in limbo, knowing their daughters were murdered and having heard evidence they must have thought identified the man accused of the murders. There has to be resolution for them.

ONE of Scotland's top legal figures last night gave his full backing to the prosecutor at the centre of the collapse of the World's End murders trial.

Frank Mulholland, QC, the Solicitor-General for Scotland, said his heart went out to Alan Mackay, who "disappeared" on Monday and failed to attend court as the trial judge announced he was ending the case because of a lack of evidence against Angus Sinclair.

Mr Mulholland's comments to The Scotsman came as Elish Angiolini, the Lord Advocate, announced she would make a statement to MSPs tomorrow defending the Crown Office's position in the case.

Ms Angiolini agreed to make a statement to the Scottish Parliament after mounting pressure from opposition politicians yesterday. They were angered over the extraordinary collapse of the case against Sinclair, who was charged with raping and murdering two 17-year-old girls after they visited the World's End pub in Edinburgh 30 years ago.

Mr Mackay had chosen not to lead evidence which, although weak, might have linked Sinclair with one of the ligatures used to strangle Helen Scott and Christine Eadie. It is understood he believed there was sufficient other, and stronger evidence, to entitle the case to be put before the jury.

Police announced yesterday that they were satisfied as to the whereabouts and well-being of Mr Mackay.

Observers believed that the Crown would dispute Lord Clarke's judgment, although there is no right of appeal against it.

Mr Mulholland, the law officer whose post is second to the Lord Advocate in the hierarchy of the prosecution service, told The Scotsman: "My heart goes out to Alan. He is a fantastic prosecutor. He is competent, he is able and he is highly regarded by his peers and by the judiciary.

"Everyone knows how hard he took the decision in this case. No-one feels more gutted than Alan Mackay at the outcome of the case."

Asked if he would defend Mr Mackay's decision on the DNA ligature evidence, Mr Mulholland added: "I do defend his decision. It is a call he made, and it was a call for very good reasons and I can understand his reasons for doing it. I fully back him in his decision-making. We just want him back safe and well."

Mr Mulholland revealed that he was last night to meet the senior investigating police officer in the case.

"I want to personally thank him for the efforts he has put in and the efforts of his team, and to assure him that the outcome is no reflection on the work of his team. Like them, we are hugely disappointed at the result of the case."

Police in Glasgow also played down speculation that they were unhappy about the way the Crown Office handled the case against Sinclair.

There have been reports that detectives from Strathclyde Police also wanted the Crown to charge Sinclair with the murders of Anna Kenny and Hilda McAuley in Glasgow, and Agnes Cooney in nearby Coatbridge, which happened in the same year as the World's End murders.

But the force's Assistant Chief Constable John Malcolm said: "Strathclyde Police would wish to set the record straight.

"The views expressed in the media by any unnamed 'police source' or 'police officer' are not the views held by Strathclyde Police."